*1 returning into a GBMI verdict —in lieu of an acquittal insanity on based Bobby and Johnnie Lee COMBS defense — illusory promise during in- Turner, treatment Appellants, L.
carceration. The trial court cannot be in- faulted for CORPORATION; Special HUBB COAL jury structing Appellant that re- would Schuhmаnn, Fund; George Adminis- S. ceive if treatment found GBMI since KRS Judge; Com- and Workers’ trative Law 504.150(1) does indeed mandate treatment. Board, pensation Appellees. However, legislature because the has consis- tently provide adequate funding, failed to No. 96-SC-444-WC. reality is treatment for those found Kentucky. Supreme Thus, Court GBMI uncertain if not is nonexistent. notes, majority opinion disposition- as the Nov. proffered by al instruction Appellant more accurate; constitutionality and the and effec- deрend,
tiveness of the GBMI statutes at in part, jury
least how the is instructed.
As Leibson in his Justice observed dissent Commonwealth, Ky.,
Mitchell v. 781 S.W.2d (1990), expect jury cannot “[w]e they
to render a ‘true if are verdict’ misled or confused_” reason,
For I would hold that all requested, disposi-
future where eases it is specifies
tional that treat- instruction which provided during
ment incarceration will be
only necessary and deemed available given legislature as
be until such time adequate
commits resources for treatment Perhaps this would
those found GBMI. potential inequity somewhat the
ameliorate present applica- scheme whose majority opin- aptly
tion is described ap- punishment as method of
ion “a charade, nothing more that a
pears to be in a verdict ... which amounts
cloaked oxymoronic term of
nothing than an more
art.” *2 Fur-
affirming of the Board. the decision thermore, we conclude that since Appeals is and well- of sound of Court reasoned, full it forth adopt it in and set we as follows: DYCHE, JOHNSON, “BEFORE: JOHNSTONE, Judges.
“JOHNSTONE, pre- The issuе JUDGE. admin- petition is whether the by sented may attorney’s judge limit an istrative law amount the author- fee to a under reasonable 342.320(1), ity notwithstanding the with agreement fact contractual that a provides for the claimant the maximum Compensa- by law. The Workers’ allowable approval that tion concluded the fee Board legislative that evinces respective impartial fact finder balance the attorney proceeds of interests and client in of and, end, compensation au- award to that thorized to reduce a fee which the ALJ light specifically of articulat- unreasonable no assess- ed find error in that factors. We and, accordingly, opinion of ment affirm the the board. Bobby Lee was awarded
“Claimant Combs disability occupational total benefits under 342.732(l)(d) of due to contraction his Special pneumoconiosis. The coal workers’ petitioned of that Fund for reconsideration Buttermore, Cox, Turner, Ronald C. & liability for portion addressing of the award P.S.C., Harlan, Boggs, Appellants. for life payment his should claimant outlive Callis, III, Prestonsburg, John Harlan sustaining the expectancy. In an order Appellee Corp. Hubb Coal position, counsel’s fund’s the ALJ resolved $29,837.46, in the motion for a fee amоunt Bartholomew, Cabinet, K. Labor Judith $8,200. The by allowed reducing the fee Fund, Louisville, Special Appellee Special support of findings detailed ALJ rendered Fund. fee, not- his decision to reduce allowable ing conform that counsel’s affidavit failed to OPINION OF THE COURT 4(6) 25:011, Section in that to 803 KAR appeal This concerns whether KRS 342.320 expended rendering the enumerated time Judge authorizes Administrative Law line-by-line provided. A services was not (ALJ) to limit an fee to “reason- in a review of the services resulted listed agree- able” amount where the contractual approximately 21.5 hours calculation that between the worker and ment pur- professional expended had been time provides for maximum allowable suing concluding In the re- claim. law. light quested not fee was reasonable factors, all the the ALJ found that Having arguments considered intro- opinions proceeding in the had been parties, as the of the evidence as well reports, depositions ALJ, duced that no Comрensation Board medical the Workers’ taken, hearing had (Board) and that no Appeals, not had been and the we are Court noted specifically He also erred been conducted. persuaded that the Court fees, the admin- lengthy рleading that the most record the allowance affidavit, motion, attorney’s findings was the and or- istrative law shall set forth requesting fee. approval der of his support approved. sufficient to amount may law reduce administrative “Utilizing his calculation of 21.5 hours of attorney’s to an amount commen- time, professional the ALJ determined coun- *3 may performed, the services or surate with hourly requested sel’s rate the would fee deny attorney’s upon an or reduce $1,387.79 per In total hоur. addition to the Any proof employment. of of solicitation factors, statutorily the mandated ALJ stated made to a claimant in a nonresisted award Kentucky that he had considered a Bar Asso- provisions claim as established under the survey concerning typical hourly ciation rates in award of of shall result KRS 342.316 attorneys parts in the various of state and hun- exceeding not seven ultimately in concluded that a reasonable fee ($750). fifty dred dollars $8,200, hourly this case is at an rate of $400. boаrd, appeal “In his the to counsel assert- (5)
ed that the ALJ his in shall abused discretion The administrative law refusing approve approve to the contractual amount any contract between by Relying of the maximum allowed law. and limits on enumеrated client the fees 342.320(5)(b), language the of KRS below are followed: counsel insisted if the limit on (a) claim is under When the uncontested observed, has been the fees ALJ has no 342.316, provisions the the attor- approve and the discretion must contractual ney equal shall not exceed an amount contention, rejected amount. The board ($750). fifty to seven hundred dollars opining that a under counsel’s construction (b) claims, the In all other the fee of significant portion of 342.320 ren- is pro- attorney shall not exceed the amounts meaningless. agree. dered We (1) this section. vided in subsection of starting point “The for our is discussion added). (emphasis KRS 342.320 pertinent necessarily portions the of the stat- 1 statutory con rules “General of question: ute attempt to reconcile govern struction our (1) attorneys physicians, and All fees of be appellant perceives what to be a conflict charges hospitals all and of under this (1) (5) approval tween the fee sections and of approval chapter, subject shall to the be of with well-established statute. We start the pursuant the administrative law to premise construing legislative enact that in regula- statutes the and administrative ments, and look the letter courts “should to however, Provided, ... the tions. admin- statute, it as a spirit viewing of the making law judge, istrative an allow- whole_” Noffsing- v. City Owensboro attorney fees, shall in each case ance of er, (1955). 517, Ky., 280 519 Where S.W.2d examine record to ascertain the extent apрarent there is conflict sections of between rendered, a the services and reason- fix statute, harmonize courts must endeavor to rendered, able services not to fee for to both. interpretation give its so as to effect by authorized exceed maximum Guaranty Kentucky Association Insurance by section. factors to be considered (1994). NREPC, Ky.App., 885 315 S.W.2d judge making the administrative law doing, reviewing In must at- include, so court allowance of fees shall tempt a man- the statute in such nаture, to construe necessarily limited to: but not be “ part meaningless it or ner that ‘no attorney’s scope, quality and of the ser- Ky., 279 Meyers, ineffectual.’” Brooks v. vices; competence re- level skill and (1955). 764, re- Finally, S.W.2d 766 we are attorney quired rendеring of the out in services; achieved; quired to observe the directive set experience and results Transportation Kentucky, Commonwealth attorney; contingent and skill level Tarter, Ky.App., making In order Cabinet v. 802 S.W.2d of the case. nature approv- subject April fees are to quoted that contractual 1. The statute was amended effective 4, 1994, making legislature’s al. clearer the even (1990), given in a case in the to reduce that each section is to be construed Board аccord with the as a whole. with the ser- “to an commensurate amount Acts, 192, § 25. performed.” Ch. vices “Applying principles these to KRS provide, was to In the statute amended 342.320, persuaded legisla we are that the addition, that: ture intended to makе the reasonableness of subject board, making all fees review the ALJ. To of attor- an allowance hold otherwise render a would substantial ney fees, each case examine (1) portion nullity. In opin of section our ser- ascertаin extent record to ion, reading KRS 342.320 as whole and rendered, fee for and fix vices a reasonable (1) (5), attempting to harmonize sections rendered, not to exceed the services out in the reasonableness conditions set sec mаximum authorized this section. *4 (1) implied part tion must be to be of section Acts, 16, 1970, § not until 6.1 It was Ch. (5). (4) (5) [now, ] was added that subsection interpretation view the the “We board’s Acts, 177, § 1974, 2. As to statute. Ch. effectuating as munificent the overall 342.320(4) 1974, provided in KRS amended Compensatiоn purposes of the Workers’ Act that, any contract approve “The board shall injured potential protecting from claimants limits on attorney and if the between client overreaching legal in contracting repre- for fees bеlow are followed....”2 enumerated prosecution sentation for of their claims. whole, Within the framework of the act as a legislature When the amended KRS entirely the board’s view of 342.320 is (4) to 342.320 in 1974 and added subsection proper. and reasonаble (1) statute, aware it was that subsection Compensa- “The of the Workers’ permitted fix a reasonable the fact-finder to Board is tion affirmed. attorney Nonetheless, reasonable- fee. (1) ness set forth in subsection determination “ALL CONCUR.” Therefore, my opinion was not altered. it is that the word in subsection use of the “shall” STEPHENS, C.J., KING, and (4) legislative a intent to remove indicates LAMBERT, and STUMBO reduce at- discretion from the fact-finder to WINTERSHEIMER, JJ., concur. torney when the limits enumerated fees J., BAKER, by separate oрinion dissents Likewise, the reten- therein were followed. GRAVES, J., joins. in which tion of determination the reasonableness (1) legislative indicates a subsection BAKER, Justice, dissenting. attorney fix a that the fact-finder reasonable Respectfully, I dissent. there was no thоse cases which history legislative A review of the of KRS attorney contract and client. between that, outset, 342.320 reveals from the Accordingly, I would reverse the Court attorney representing for workers’ com- to the ALJ for and remand case subject pensation claimant has been attorney provided in entry of an fee as Typical approval of the fact-finder. attor- claimant and the the contract between it, preceded which versions 342.320 ney. Although might seem such result provided 1964 amendment a maxi- particular fee, on the facts unreasonable attorney at that time mum authorized case, recovered, legislature to set and it the function of the amount authorized 20% 342.320(5) provide, “The was amended to ad- сonsidered when de- 1. The various factors to be termining attorney any approve reasonable law contract ministrative Judge case Law relied the Administrative fees are re- and client if the between Acts, 1990. added to statute in were approved law viewed and the administrative 352, § 1. Ch. (1) this section pursuant to subsection are on fees enumerated below the limits case was awarded 2. The in this followed....” ICRS It was not until parameters awarding fees compensation workers’ casеs.
GRAVES, J., joins in this dissent. KESLER,
Peggy Appellant, W. SHEHAN,
Norma Executor of the Estate Teddy Shehan; Shehan, H. Norma in
dividually; Paige Turner; A. Jana She
han; Beverly Patrick Shehan and She
han, Appellees.
No. 95-SC-910-DG. Kentucky.
Supreme Court of
Nov. Thacker, Parrent, III, Whitney
Homer A. Vish, Smither, Parrent Michael & James Louisville, appellant. Hubbard, Regina Douglas Rapier
John Beckman, Fulton, McCoy, Hub- P. Challen Hubbard, Bardstown, appellees. bard & WINTERSHEIMER, Justice. appeal is from a decision the Court This jury Appeals which reversed verdict grounds trial that an ex- ordered a new on pert opinion going to the ultimate offered contest fact in a will case. presented are questions whether in its determination
Court of erred expert offered question was reserved ultimate fact opened jury; estate whether Shehan badges testimony to the about the door testimony eliciting such of undue influence expert; from whether the Shehan their own preserve the error failed to asserted estate